Scalia signaled that he fears Section 5 will be repeatedly reauthorized into perpetuity, regardless of whether it’s justified, unless the courts step in.

“This is not the kind of question you can leave to Congress,” he said.

15th Amendment Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Wow you did a massive jump there between two very unrelated topcis. First I'll start with the current topic. Section 5 is probably in violation of section 1 of the 15th amendment. Race and color are being used to create "extra protections" through that provision. Scalia isn't saying that congress doesn't have the authority to enforce the protections of the 15th amendment, he's saying that the setup here is so poor, that this quite probably unconstitutional legislation will continue to get approved by congress indefinitely.

Think about it, you have a branch of gov't of whom 95% are not electable by the people who this legislation affects, exerting additional oversight on to their duely elected representatives. And this is done under a particular provision of a law entitled the "Voting Rights Act". What would be the motivation for a federal level congressman to vote against such a bill? There's no reasonable check and balance here except the judicial branch. You may disagree, I happen to think he's almost certainly correct, but that hardly seems like an egregious position.

Now to the rest of your post, which is pretty far off topic. I'm not sure what the value of your think"progress" link is, other than implying his citizen's united decision give corporations rights, and ignoring the reality of money in politics...which is pretty silly

I'm no expert on Scalia, but I think your characterization is pretty inaccurate. His textual reading of the constitution almost certainly isn't meant to constrain your rights, it's meant to contrain governmental regulation. Just like in this case.

Do you have a quote where Scalia actually said that the right to vote was a racial entitlement? The first article Klaud linked constrained his racial entitlement comment to Section 5. Indeed Justice Sotomayor's supposed rebuke of Scalia's comments directly referenced Section 5.

Scalia never said that, so if I seemed to imply it, my bad. Sotomayor bringing up the right to vote in relation to Section 5 is because that is what Section 5 is essentially about - protecting "the right to vote".

From the point of view of court involvement, if the counties had actual proof that they weren't discriminating, they could get out from Section 5 by simply getting the court to recognise that 10 years puts them into the Get-Out clause (and that some stamp-pusher in somewhere with a grudge wanted to keep them under). That's not quite the angle they're trying to go for though - largely because they can't quite claim that they haven't been pushing for discriminatory voting procedures in the last 10 years.

What would be the motivation for a federal level congressman to vote against such a bill? There's no reasonable check and balance here except the judicial branch. You may disagree, I happen to think he's almost certainly correct, but that hardly seems like an egregious position.

Congress would have zero reason to vote for a bill if no states qualified (aka, every state/county provided evidence that they haven't tried discriminatory voting procedures for 10 years). It's an extremely hard sell to claim that this violates the first Amendment when it doesn't (and can't, in any way) deny or abridge the right to vote, and does the exact opposite - prevents a State from denying or abridging the right to vote.

Last edited by Darielle on Fri Mar 01, 2013 2:50 pm, edited 1 time in total.

Fridmarr wrote:Nobody can prove that they haven't discriminated in the last ten years though.

"The term "bail out" refers to the process by which covered jurisdictions may seek exemption from Section 5 coverage.[18] In order to bail out, a covered jurisdiction needs to obtain a declaratory judgment from the District Court for the District of Columbia.[5] Eighteen Virginia jurisdictions not covered by Section 5 Preclearance requirements have successfully "bailed out."[18]

Before August 1984, this process required covered jurisdictions to demonstrate that the voting test that they used immediately before coverage was not used in a discriminatory fashion. The 1982 amendment included two significant changes.[18] First, Congress provided that where a state is covered in its entirety, individual counties in that state may separately bail out. Second, Congress completely redesigned the bailout standard. The post-1984 bailout standard requires that a covered jurisdiction demonstrate nondiscriminatory behavior during the 10 years prior to filing and while the action is pending and that it has taken affirmative steps to improve minority voting opportunities

On September 22, 2010, the first two jurisdictions outside the state of Virginia—Kings Mountain, North Carolina, and Sandy Springs, Georgia—successfully "bailed out" from Section 5 Preclearance requirements.[20] On November 15, 2012, New Hampshire sued to "bail out" from the requirements, which were originally imposed on ten towns that used a literacy test and had voting disparities when the Act was passed."..."In 2006, the United States Commission on Civil Rights reviewed the Justice Department Preclearance record and found that the percentage of DOJ objections to submitted changes has declined markedly throughout the 40-year period of the Act: from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third. Over the 10 years prior to the review, the overall objection rate was so low as to be practically negligible, at less than 0.1 percent.[15] The Commission's two Democratic members dissented from the report, charging that the Commission had "abandon[ed] the field of battle."[16]In the case Northwest Austin Municipal Utility District No. 1 v. Holder (2009), the Supreme Court ruled that the district should have greater capability of applying for exemption from this section"

Now, I imagine the process is certainly harder to get out of than it should be - and that might be a perfect place for the Supreme Court to set some pretty clear guidelines or rules.But areas certainly can and have successfully bailed out, especially when a county can bail out without being shackled by other counties it may have no control over.

Of course they have reason to vote for it, it's political cover. It shouldn't be, but in reality it is. It will be highly controversial to ever not vote for this legislation. And again, voting for it has almost zero political cost..

It's the 15th amendment and yes it can. If in your example voting hours are unchanged when it adversely affects minority groups while the current hours adversely affects non minority groups...there there's the whole majority minority districting which I believe also falls under the act.

And why should properly elected representatives have to go through the hinderance of petitioning the court to simply do the job that others in their position can regularly do without such oversight? Because someone a few generations ago implemented racist policies? Is that the crimes of our father provision?

Fridmarr wrote:Of course they have reason to vote for it, it's political cover. It shouldn't be, but in reality it is. It will be highly controversial to ever not vote for this legislation. And again, voting for it has almost zero political cost..

Of course they have reason to vote for it, it's political cover. It shouldn't be, but in reality it is. It will be highly controversial to ever not vote for this legislation. And again, voting for it has almost zero political cost..

Hypothetically, when it next comes up, if there are zero counties that it can be applied to - they have zero reason to vote for it at that point.If there are counties that it does apply to, that kinda, by default, justifies its existence.

It's the 15th amendment and yes it can. If in your example voting hours are unchanged when it adversely affects minority groups while the current hours adversely affects non minority groups...there there's the whole majority minority districting which I believe also falls under the act.

Being able to prove that would give a case to extend voting hours to cover both what is currently available on top of what you want to provide, not either/or. The Act doesn't stop the counties from extending/expanding procedures to make them better for everyone, but it will stop them from altering procedures to screw someone. It doesn't even actually care about who the minority or majority is.

It also includes stuff like providing Spanish or other translations on ballots based on the criteria of whether the language in that state/country crosses a threshold.

And why should properly elected representatives have to go through the hinderance of petitioning the court to simply do the job that others in their position can regularly do without such oversight? Because someone a few generations ago implemented racist policies? Is that the crimes of our father provision?

And that "characterisation is pretty inaccurate", because this isn't about a few generations ago. That generation is not only still alive, the counties are still currently pursuing discriminatory voting procedures. Should that stop being the case, this Act can fall by the wayside, and 100% won't be extended, because it will have done its job.

Mind you, there probably wouldn't be that many complaints if "in the interest of fairness", the Supreme Court decreed that the Voting Rights Act would have to apply to every state/county and there's no Get-Out clause, and it's just a thing that never has to be revisited/extended. In the interests of fairness. Oh wait, that would also be a perpetuation of racial entitlement /snark.

Really do the rest of the sections of the act have no use? I don't know that throwing it out wholesale is a good idea.

No, it doesn't stop them from altering procedures to the detriment of non minorities. Section 5 has it's own history there too, at times blocking legislation that is ultimately overturned by the higher courts. Most importantly it doesn't stop blatantly discriminatory legislation in other districts. Like the mismash of voter ID laws in covered/uncovered areas some thrown out, some allowed. Again creating a situation that is in violation of the 15th amendment, by providing an unequal protection.

It's not inaccurate. Racially discriminatory voting legislation is already in violation of the 15th amendment. The point of section 5 was to stop a pattern of jurisdictions going back and forth with the feds in a continuing pattern of creating racially discriminatory laws one after another as the feds got them thrown out. Thus, the pre-approval was created to stop that. It seems really unlikely that that could happen again. Also, The data analysis shows that in the last 20 years in particular, there's no statistical difference between the covered jurisdictions and uncovered jurisdictions. So why are we holding them to a different standard?

I'm pretty certain expanding this to other areas would explode the complaints. Requiring federal pre-approval for elected representatives to enact legislation is on shaky ground when dealing with a state's sovereignty just in general. Judicially was justified by the unique nature of the problem that it was attempting to solve in a somewhat "well tough shit you deserve this so we don't care" kind of way, but that was 50 years ago.

Fridmarr wrote:No, it doesn't stop them from altering procedures to the detriment of non minorities. Section 5 has it's own history there too, at times blocking legislation that is ultimately overturned by the higher courts. Most importantly it doesn't stop blatantly discriminatory legislation in other districts. Like the mismash of voter ID laws in covered/uncovered areas some thrown out, some allowed. Again creating a situation that is in violation of the 15th amendment, by providing an unequal protection.

That's not actually a violation of the 15th Amendment on the part of Section 5. It's a violation of the 15th Amendment on the part of the states in question, that weren't stopped or addressed by a measure (such as Section 5).

It's not inaccurate. Racially discriminatory voting legislation is already in violation of the 15th amendment. The point of section 5 was to stop a pattern of jurisdictions going back and forth with the feds in a continuing pattern of creating racially discriminatory laws one after another as the feds got them thrown out. Thus, the pre-approval was created to stop that. It seems really unlikely that that could happen again. Also, The data analysis shows that in the last 20 years in particular, there's no statistical difference between the covered jurisdictions and uncovered jurisdictions. So why are we holding them to a different standard?

The answer to that is probably covered in"These counties haven't proven that they have stopped the pattern", and we already know they have a pattern. The other counties that HAVE Gotten Out were able to prove they were no longer following the same pattern, so they no longer are being held to the standard. These particular states/counties have not. If Sotomayor can cite instances where Shelby County was/is pursuing racially discriminatory laws, that's pretty much the reason for the "different standard" summed up.If the claim is that the metric used should cover X other states, I don't think people who think the Section is still fulfilling its purpose would complain. It CERTAINLY isn't an argument for scrapping the section.

Now, in saying that it's unlikely that the pattern could happen again, that might work - if it weren't a plausible scenario coming up in every single election, including last year's.

I'm pretty certain expanding this to other areas would explode the complaints. Requiring federal pre-approval for elected representatives to enact legislation is on shaky ground when dealing with a state's sovereignty just in general.

It's most definitely not on shaky ground when it deals with enforcing the state/county's elected representatives' compliance with terms in the US Constitution.

Sorry, I mistyped that. The first part is the violation of the 15th amendment, the latter is the 14th.

I'm not sure if it's just lack of familiarity with our federal/state relationship, but it obviously is shaky ground. Pre approval is an extraordinary requirement. It was basically treated like a punishment, and that's why it was constrained and not nationwide when it was implemented. It's doubtful it would have held up to scrutiny if it was nationwide. It's a significant part of why this particular section is being scrutinized by the court now.

We already know that they "had" a pattern, fifty years ago. There is clear data here. Analysis has shown that there is no difference between covered and uncovered areas. As you already mentioned, the objection rate at this point is less than .1%. That is 55 times less than it was in the 60s. Minority registration and participation rates (original metrics used in the 60s) in the covered areas are also solid. Could a particular district still have a problem? Sure, though just because a Justice makes that claim during questioning, doesn't make it true. I can't say I'm particularly familiar with Shelby county, but it's impossible to argue that the covered areas as a whole are still following that pattern, the data just doesn't exist to support that claim.

I've strayed a bit here though, I was really just interested in why Klaud was so upset with Scalia's comments. Not as to whether section 5 is still applicable.

Throughout the thread I've done some of both. Like that whole vaccination thing was more devil's advocate...well that wasn't devil's advocate as much as me understanding how people reached their decision, but in explaining that I had to put forth their points even though I may have disagreed with them.

Is there something in particular that you are asking about? On this topic, I'm not being a devil's advocate. I don't care for section 5. I think a pre-approval requirement is overstepping by the feds. I can buy their unique justification for it, but the logic behind that justification still needs to apply, and I don't believe it does. The feds can rely on section 2 like the rest of the country does, and it seems to work pretty well. You can see that in the last election cycle pretty clearly.

However, pertaining to what spawned the discussion, I don't find Scalia's comments problematic. What is problematic is how they've been twisted, not necessarily here, but in the media like the second article Klaud linked.

Fridmarr wrote:Throughout the thread I've done some of both. Like that whole vaccination thing was more devil's advocate...well that wasn't devil's advocate as much as me understanding how people reached their decision, but in explaining that I had to put forth their points even though I may have disagreed with them.

Is there something in particular that you are asking about? On this topic, I'm not being a devil's advocate. I don't care for section 5. I think a pre-approval requirement is overstepping by the feds. I can buy their unique justification for it, but the logic behind that justification still needs to apply, and I don't believe it does. The feds can rely on section 2 like the rest of the country does, and it seems to work pretty well. You can see that in the last election cycle pretty clearly.

However, pertaining to what spawned the discussion, I don't find Scalia's comments problematic. What is problematic is how they've been twisted, not necessarily here, but in the media like the second article Klaud linked.

I wasn't talking about the current topic, just an overview of your seemingly opposing position on everything haha (Base generalization there.) Not trying to debate anything, was purely curious if you were just presenting the opposing view, or if you actually held an opposing view.

Sorry, I mistyped that. The first part is the violation of the 15th amendment, the latter is the 14th.

Unless you're claiming that this is somehow a debt being paid, you're going to have to actually go into more detail on this part to explain how you think this comes into play.

We already know that they "had" a pattern, fifty years ago. There is clear data here. Analysis has shown that there is no difference between covered and uncovered areas. As you already mentioned, the objection rate at this point is less than .1%. That is 55 times less than it was in the 60s. Minority registration and participation rates (original metrics used in the 60s) in the covered areas are also solid. Could a particular district still have a problem? Sure, though just because a Justice makes that claim during questioning, doesn't make it true. I can't say I'm particularly familiar with Shelby county, but it's impossible to argue that the covered areas as a whole are still following that pattern, the data just doesn't exist to support that claim.

And it's amazing progress that the rate has gone so far down compared to 50 years ago. It doesn't really exclude the case of "Is there a problem still existing?" however.If the metric used for determining which counties should be affected are outdated, that can be changed. Considering all the counties still affected have not been able to, since 1982, provide evidence that they are NOT in such a pattern (while other counties have), it is still reaching to suggest that the pattern has ended (in the case of all counties still covered by preclearance), however.

The problem as I said, is that the federal government requiring pre-approval before state/local legislation can be enacted is extraordinary. It's almost certainly unconstitutional in all but the extreme cases. There's no extreme anymore, which again is why the justices are scrutinizing it in the first place.

These covered areas don't have a particular problem that needs solved, certainly nothing that other areas don't have. Don't confuse not able too bail out with not trying too. Petitioning the federal gov't to bail out is no routine task. There's more than 12,000 districts that are covered, and some are tiny (obviously) they don't exactly maintain legal staff. It's beyond cost prohibitive.

There's no metric that currently supports something different, because there's no metric that differentiates these areas at the moment. Section 2 covers all of this just fine.

Fridmarr wrote:You lost me on the debt thing. I'm not sure what you are asking.

The problem as I said, is that the federal government requiring pre-approval before state/local legislation can be enacted is extraordinary. It's almost certainly unconstitutional in all but the extreme cases. There's no extreme anymore, which again is why the justices are scrutinizing it in the first place.

These covered areas don't have a particular problem that needs solved, certainly nothing that other areas don't have. Don't confuse not able too bail out with not trying too. Petitioning the federal gov't to bail out is no routine task. There's more than 12,000 districts that are covered, and some are tiny (obviously) they don't exactly maintain legal staff. It's beyond cost prohibitive.

There's no metric that currently supports something different, because there's no metric that differentiates these areas at the moment. Section 2 covers all of this just fine.

Where you a situation where there is a racial minority that is being oppressed, those of that minority may not feel the liberty to complain without reprisal. One day someone gets brave enough to, the Fed investigates, finds evidence, and makes whatever corrections are necessary - system working as intended. But maybe the person who blew the whistle gets some threats and decides not to complain the next time rules are changed in an unfair manner.

That's why the Fed should be watching areas where racial or minority oppression was previously happening, to assure that it doesn't happen again instead of waiting around for someone to file a complaint. It's not as if the people who tried before are all gone and replaced by ethical individuals. The same crooks are still in power there and will try it again if they think they can get away with it.

These covered areas don't have a particular problem that needs solved, certainly nothing that other areas don't have

You know those are two separate concepts

Don't confuse not able too bail out with not trying too. Petitioning the federal gov't to bail out is no routine task. There's more than 12,000 districts that are covered, and some are tiny (obviously) they don't exactly maintain legal staff. It's beyond cost prohibitive.

It's almost certainly unconstitutional in all but the extreme cases. There's no extreme anymore, which again is why the justices are scrutinizing it in the first place.

No, not really. Unlike in previous cases where people were arguing that they qualified for bailout and were incorrectly rejected, Shelby County does NOT have that, and is not trying to argue that. But a few random comments by Scalia don't actually mean the constitutionality will necessarily be addressed, even if scrutinised.

Even some of the Justices that are questioning whether the metrics used should apply aren't actually suggesting that the constitutionality is a point of concern, merely whether the forumula used is appropriate or whether a new formula needs to be used.

There were a few things I found interesting:- an ID requirement is seen as racist because it is a "poll tax"- some of the Sect 5 jurisdictions have higher proportions of blacks voting than whites- the article closes with citing numbers of black representatives, and how they have increased since 1986, citing these numbers as testaments to the success of Sect 5.

Yeah, I think MA is flipping out a bit. Maybe he didn't use the most current data, but he wasn't far off, and even they admit that the overall point of his argument is fine... http://www.fairvote2020.org/2008/02/afr ... ation.html. I don't think he was saying that MA is more racist, just that the metrics are not what people tend to think.

I'm glad you quoted that case, as having read the brief, it confirms all the significant points I've been making. It's worth noting though, it does nothing to refute the point in which you quoted of me. My claim that it's difficult for many jurisdictions to petition the federal gov't to bail out, actually relies on that case. Had that case not happened there's not even close to 12,000 jurisdictions who can even apply for bailout.

Now, to the points I've been repeatedly making that are within that decision, as written by Roberts and enjoined by seven other members of the court. I'll quote directly from the brief, minus case references:

First, that the pre-approval notion is an extraordinary requirement that likely wouldn't be constitutional nationwide.

The Supreme Court wrote:We concluded that the problems Congress faced when it passed the Act were so dire that “exceptional conditions [could] justify legislative measures not otherwise appropriate.”...

At the same time, §5, “which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs.’ ” These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of §5.

The notion that the justification needs to be current.

The Supreme Court wrote: These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.

The conflict with section 2 and the 14th amendment (equal protection clause)

The Supreme Court wrote:The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.

These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. (“Race cannot be the predominant factor in redistricting under our decision in Miller v. Johnson, 515 U. S. 900 (1995) . Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 seem to be what save it under §5”). Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere.

The brief for the case pretty much covers my take, articulating it better than I can, and with obvious authority. I'll just defer argument to the brief.

I don't know how the court will rule, they may leave things as they are, change the metrics, or toss out section 5, but the issues that I have been pointing out are clearly valid and warrant constitutional scrutiny.

I'm glad you quoted that case, as having read the brief, it confirms all the significant points I've been making. It's worth noting though, it does nothing to refute the point in which you quoted of me. My claim that it's difficult for many jurisdictions to petition the federal gov't to bail out, actually relies on that case. Had that case not happened there's not even close to 12,000 jurisdictions who can even apply for bailout.....

That wasn't my point. I wasn't refuting your claim that it's "difficult", my point is that if the SC finds it is difficult, they won't necessarily act against the law so much as enforce that the DoJ must make the process easier.

The notion that the justification needs to be current....The conflict with section 2 and the 14th amendment (equal protection clause)

You know, those are actually the same thing, in that if the justification is current (and it would have to involve the geographic coverage for that), it would be a justified distinction.

More, when you look at the entire reason why they didn't actually try and make a decision about the constituionality last time, the same can be applied to Shelby County (a new metric would cover Shelby anyway, and they would be working with the same out-clause as before).